September 01, 2011

In this response Plaintiff, an injured crewmember aboard a Maersk vessel, oppossed Defendant’s efforts to dismiss his complaint. Defendant’s motion centered around three seperate causes of action pled by Plaintiff, negligence, negligence per se, and unseaworthiness. Defendant argued that Plaintiff’s claims were untimely and that Plaintiff should not be permitted to plead negligence and negligence per se as two seperate causes of action. Plaintiff responded with binding precedent to demonstrate that Defendant’s arguments of timeliness were misplaced and should be denied. Plaintiff also responded that no binding precedent prohibited him from pleading his actions seperately, and that pleading seperately would be beneficial to the trier of fact.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 11-21589-CIV-CMA
WILLIAM C. SKYE
Plaintiff,

COMES NOW the Plaintiff, WILLIAM C. SKYE, by and through undersigned counsel and hereby files his Memorandum of Law in Opposition to Maersk’s Motion To Dismiss Plaintiff’s Amended Complaint. In support, Plaintiff states as follows:

I. OVERVIEW

This matter arises out of injuries sustained to a Jones Act seafarer. Plaintiff William C. Skye worked as a seaman aboard the Maersk Sealand Pride. Plaintiff’s complaint alleges that throughout his employment with Maersk, Plaintiff was subjected to dangerous working conditions due to Defendant’s direct, repeated violation of various Federal statutes, including, but not limited to, 46 U.S.C. § 8104[1]. These violations caused Plaintiff to work excessive duties and duty time which caused physical damage to Plaintiff’s heart, such as labile hypertension. As a result, Plaintiff is no longer able to work as a seaman.

Defendant previously moved to dismiss Plaintiff’s original complaint. D.E. 5. After the matter was fully briefed, this Honorable Court granted in part and denied in part the motion. D.E. 21. This Honorable Court held that Count I (Jones Act Negligence) and Count II (Unseaworthiness) could proceed as plead, and that Count III (Negligence Per Se) was dismissed without prejudice. Plaintiff was given leave to file an amended complaint, which, as the Court specifically directed, specifically laid out which statutes and/or regulations were allegedly violated and to provide enough facts in support to make his claim [of negligence per se] viable. D.E. 21, p. 7.

On August 5, 2011, Plaintiff filed his Amended Complaint. D.E. 24. And on August 15, 2011, Defendant moved to dismiss the Amended Complaint. D.E. 25.

II.MAERSK’S UNAVAILING ARGUMENTS IN ITS MOTION TO DISMISS

In its Motion to Dismiss, Maersk first argues that Count III, the negligence per se count, fails to state a cause of action because of case law cited which holds that negligence per se is not a separate cause of action, but rather is encompassed in Count I, Plaintiff’s Jones Act Negligence claim. Review of the authority cited does stand for the proposition that a negligence per se count should not be plead as a separate cause of action independent from a general negligence claim. That being said, there does not appear to be binding precedent to this point. It is Plaintiff’s position that the better reasoned approach is to have separate causes of action (negligence vs. negligence per se), because in a jury trial it is often difficult to segregate issues which are not separated in pleadings. Furthermore, this is an argument of form over function because whether plead separately or together, the end result is the same.

Having said that, should this Honorable Court agree that a negligence per se count should not be plead as a separate cause of action independent from a general negligence claim, then Plaintiff respectfully requests leave to file a second amended complaint to conform as such.

Next, Maersk argues that Count III also fails because it is not specific enough as to which subsections of the statutes were allegedly violated. This argument fails because the Plaintiff specifically complied with this Honorable Court’s Order on the first Motion to Dismiss and specifically named the statutes and regulations allegedly violated.

Further to this point, Maersk argues the Amended Complaint still fails to provide any factual basis other than legal conclusions to describe the alleged violations. This argument fails because essentially the same factual allegations contained in Count I, which this Honorable Court previously ruled were adequately pled, are contained in Count III. In addition to this, Plaintiff’s Amended Complaint, at ¶ 22, adds:

More specifically, Federal Statutes 46 U.S.C. § 8104 and 46 C.F.R. § 15.111, deal directly with work and rest hours of seafarers, such as Plaintiff. And the repeated, flagrant violation of these work and rest hour statutes directly and proximately caused or contributed to Plaintiff’s injuries. Accordingly, Defendant’s breach of its duty and/or duties amount to negligence per se.

Accordingly, Plaintiff certainly has provided enough facts to state a plausible claim.

Lastly, Maersk argues Counts I and II fail because they fail to allege Plaintiff’s claims are timely. This argument fails because controlling precedent establishes that Statute of Limitations is an affirmative defense, based on facts outside the four corners of the complaint, which is most properly raised in an Answer. As the Court held in United Transp. Union v. Florida E. C. R. Co., 586 F.2d 520, 527 (5th Cir. Fla. 1978):

Herein, nothing in the Amended Complaint affirmatively shows the claim is time barred (because it is not time barred). Accordingly, Maersk’s argument is misplaced.

III. LEAVE TO AMEND

Alternatively, in the event this Honorable Court grants Defendant’s Motion to Dismiss, or any part thereof, Plaintiff respectfully moves this court for leave to file a Second Amended Complaint to correct the technical defects raised by Maersk. Bryant v. Dupree, 252 F.3d 1161 (11th Cir. 2001)(Where more carefully drafted complaint might state claim, plaintiff should be given at least one chance to amend complaint before district court dismisses action). Emphasis added. Plaintiff recognizes he has already been given one chance to amend the complaint, but thereafter, Maersk raised new arguments, not previously raised. As such, Plaintiff should be given another opportunity to amend. Allowing leave to amend is in accord with Fed. R. Civ. P 15 which states that leave to amend shall be freely given when justice so requires. Herein, justice requires Plaintiff be given an additional opportunity to amend.

WHEREFORE, Plaintiff respectfully requests this Honorable Court deny the Defendant’s Motion to Dismiss in its entirety and any other relief this Court deems necessary and proper.

[1] Title 46 U.S.C. § 8104 establishes maximum amounts of time any given crewmember can work aboard certain U.S. Vessels.

* Disclaimer required by the Florida Bar: The numbers above are the gross recoveries, before deduction for attorneys fees and expenses. Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result.